An insider's view of what is really happening in the Harris County Criminal Courts

Tuesday, December 20, 2011

A Tale of Two Hearings

As you should all know by now, Judge Al Bennett overruled Rachel Palmer's Motion to Recuse Judge Susan Brown from a hearing on a Motion to Compel Testimony before the 185th District Court Grand Jury this morning. The lawyers then all proceeded back to the 185th District Court where Judge Brown ultimately overruled the Special Prosecutors' Motion to Compel. Judge Brown (in my opinion, wisely) stated that the questions proffered by the Special Prosecutors could have answers that "went either way" as to whether or not they were incriminating. She made the safe call.

She also pretty much showed that the entire hearing on the Motion to Recuse was silly. (NOTE: For more on that, read Lisa Falkenberg's excellent column here.) Stephen St. Martin and Jim Mount now have the option of offering Rachel Palmer immunity and compel her testimony that way.

But let's go back and talk about the hearing from yesterday and the things we learned from it.

The hearing was in front of 61st Civil District Court Judge Al Bennett. He was very impressive in hearing all sides of the argument, maintaining Courtroom and Grand Jury integrity, and giving the issue of a Motion to Recuse very serious consideration. Rachel Palmer's defense team called five witnesses -- including Palmer, her husband Don Hooper, Stephen St. Martin, and two of the Grand Jurors -- in their attempt to show that Judge Brown was biased against Palmer.

From the start, Palmer's attorney, Clay Rawlings, made it pretty apparent that the goal of the exercise was delay. Despite the fact that he had been the one who filed the Motion to Recuse, he started the proceedings by asking for a 10 day continuance. Now, for those of you keeping score at home, those 10 days would have been VERY significant. There is debate right now going on over whether or not the authority of all currently serving Grand Juries ends as of December 31st, 2011. Although I have heard counter-opinions, the majority seems to think that the 185th Grand Jury may run out of time on that day.

Should Rawlings' Motion for Continuance have been granted, the hearing would have commenced on Thursday, December 29th -- the last day the 185th Grand Jury meets this year. What became so very telling that the Motion was for purposes of delay was when Rawlings explained that he needed the Continuance for a witness who was 70 miles and would not appear without a subpoena.

That witness? Clint Greenwood.

For those of you who don't know, Clint Greenwood is a Division Chief of the Harris County District Attorney's Office in the Public Integrity Division. His office is one floor above Rachel Palmer's. One phone call would have had him there within the hour. It certainly would not have taken 10 freaking days.

When the Motion for Continuance was denied, they proceeded with testimony, calling one of the Grand Jurors first. The first Grand Juror testified that she had been one of the Grand Jurors who approached Judge Brown after Thursday's hearing and complained of Don Hooper taking photographs. The testimony then moved to a conversation that the Grand Juror had allegedly had with Clint Greenwood.

Per the actual Motion to Recuse and from Rawlings' opening statements, he believed that this particular Grand Juror had made the statement to Greenwood that "Roger [Bridgwater] and Jim [Leitner] had better not 'fall on the sword' for Pat Lykos." The Grand Juror, in her testimony, adamantly (and I believe, credibly) denied ever having made such a statement. She did point out, however, that she did, in fact, speak to Clint Greenwood on the day in question and Clint had told her, "If it was me, I would tell Leitner, Bridgwater and all the ADAs to plead the 5th."

That's a pretty sad statement coming from a Division Chief. Especially one in charge of Public Integrity. Having known Clint for a long time, I've always thought he had a tendency to, um, embellish stories. I can easily see him spouting off something to Rachel Palmer's attorneys and then not wanting to come back and say it under oath. Ultimately, Palmer's defense team rested without ever calling him.

Next up was Don Hooper, who came to deny ever having taken any photographs of Grand Jurors in the courtroom. The people he was taking photos of were myself and Luci Davidson. At this point, Don got to have the cathartic moment of setting the stage of a vast political conspiracy orchestrated by me, Machiavelli Newman. He gleefully pointed out that I had been fired by Pat Lykos and he wasn't sure if I had a job any more. (NOTE TO DON: Yes, I have always maintained steady employment since I graduated law school. How about you?) Hooper wasn't happy about seeing me and Luci entering the courtroom from the back hallway so was taking pictures.

Here's a tidbit for you, Don: all attorneys have access to those back hallways and stairwells. We come up through them quite frequently. Yes, the Judge's chambers are along those back hallways, but that isn't a direct door into the courtroom from chambers. All this effort at playing Geography Detective was kind of stupid and created a big hoopla for nothing.

Hooper also talked about how I had written horrible things about his wife on the blog and all of this was a big political conspiracy. Disappointingly, St. Martin did not cross-examine him and ask him about all of the identities he uses on the Chronicle website.

Next up I believe was St. Martin himself. He was questioned about giving money to Kelly Siegler when she ran for DA in 2008. He had no problem acknowledging that he had. Clay Rawlings then submitted St. Martin to a reading test by having him read the order appointing him as Attorney Pro Tem. Stephen passed the reading test once he got his glasses.

After that was another Grand Juror, who was grilled over her political affiliations. The questioning of her backfired when she stated on the stand that she had supported Jim Leitner for DA in 2008. When Jim lost, she supported Pat Lykos. That kind of took the wind out of the Conspiracy Sails.

And the last witness was none other than Rachel Palmer.

This was absolutely a sight to behold, as we glimpsed the framework of the vast Right-wing conspiracy designed to destroy her, according to Rachel. In very shrill, and often loud testimony, Rachel called out members of the audience (myself included) for being out to get her. The summary of the conspiracy according to Rachel is as follows:

In 2009, a dedicated and hard-working and highly admired young prosecutor named Rachel Palmer was asked to run for Judge of County Court # 13 in Harris County, Texas. The vile Murray Newman was outraged over this possibility because Rachel worked for Pat Lykos. He quickly recruited then-Assistant District Attorney Denise Bradley to run against poor Rachel. When Judge Mike Anderson decided not to run for the 262nd District Court Bench again so that he could focus on running for District Attorney and help initiate politically motivated Grand Juries, Denise Bradley ran for the 262nd.

A furious Murray Newman panicked that Rachel might now be running unopposed for the bench and quickly recruited Assistant District Attorney Don Smyth to run against Rachel. At Republican functions, Rachel would sometimes run into Judge Susan Brown and her husband, then ADA-Marc Brown. It was during these functions that our hero, Rachel, began to suspect that Judge Brown and her husband were possibly Sith Lords, since Judge Brown would say "Hi Rachel" in an offensive tone.

Once Don Smyth had defeated Rachel in the primary, she and her husband Don valiantly fought to ward off the possibility of Sith Lord Marc Brown taking the bench and campaigned heavily for his opponent -- family friend Danny Dexter. Some of Hooper's antics at polling locations infuriated Judge Susan Brown, who made a request for Rachel to come talk to her in court. Rachel, sensing a trap that could lead to her imminent death, declined Judge Brown's invitation to come speak with her.

Ultimately, Marc Brown defeated Danny Dexter in the runoff and became Judge of the 180th District Court. All the while, the 2010 election season had just been a diversion for the real plot that would come to light in 2011 . . .

Judge Mike Anderson, apparently using the Force, had foreseen that the Harris County District Attorney's Office would get themselves in trouble with the BAT Van scandal after he announced he wasn't going to run again. Furthermore, the Force had told him that there were people he and his wife, former Judge Devon Anderson, knew who would be serving on Grand Juries in 2011. Using the Dark Side of the Force, he willed it that the Grand Jury would begin investigating Pat Lykos, and subsequently Rachel Palmer.

Ultimately, it had been revealed that Judge Mike Anderson was actually Darth Sidious. Since this by implication made Judge Susan Brown out to be Darth Vader and clearly Judge Marc Brown as Darth Maul, there was no way on Earth that Rachel could get a fair hearing from Judge Brown.

Obviously, I'm joking with some of the analogies, but that was pretty much the gist of what Rachel outlined as the conspiracy out to get her.

This morning, St. Martin and Mount called Judge Marc Brown to testify that there was no personal animosity between him and the Palmer/Hooper clan, but Judge Bennett said it wasn't necessary to hear from him. He denied the Motion to Recuse.

We all came back over for the Motion to Compel, which, as noted above, Judge Vader Brown denied after meeting with Palmer's defense attorneys. The next step is to see if Rachel is offered immunity. The Grand Jury will meet today, Thursday, and next Tuesday and Thursday.

I'm betting that things are going to be resolved by the end of the year.

I suggest we start a pool identifying the aliases of Don Hooper and friends on the Chronicle. Some are easy because they use the same language, structure, and pat phrases, others not as obvious until someone presses an issue.

A good recap, Murray and a thank you for keeping us outsiders in the loop. Its a good thing, this blog... It allows those of us who don't practice at the CJC to know what is going on and stay informed. Often times the comments reveal a brighter side, but overall the posts and comments give a fairly balanced perspective of what happens over there.

I have a dear friend who practices at the CJC and is (was) a fan of Pat Lykos. He supported her in her efforts to "clean up" the DA's Office and had high hopes. Recently he began talking of the low morale and the change in prosecutors attitudes, like he couldn't put his finger on what was going on. He now will support anyone who runs against her. I wondered why.

Only NOW does it all come to to the light and thanks to your blog, I will refer others to see for themselves what really goes on over there.

Why does Ms. Palmer keep smirking? Is this not a serious proceeding? It sure seems like she and her husband have made it into quite the circus. One of the grand jurors political connection was supporting Leitner, and then Lykos. Gasp. Probably not the answer she wanted.

How can she stay on as an Asst. District Attorney? How is that a smart move? What about Leitner answering questions when he is a witness as well? He said on the news that he will answer questions but that has not occured yet.

The news made it sound like the grand jury may finish on Thursday. How could they know that? I would think that the grand jury could find other avenues to get the answers they seek.

Lisa Falkenbergs article was right on the money. And this article was written in true Murray fashion. So wow, the one part describing Ms. Palmer a "dedicated and hard working and highly admired young prosecutor" couldn't be any farther from the truth. Her personal issues aside, she thinks that it is ok to turn this into a circus. She mocks Ted Oberg, treating him like a child. Her contempt was clear. Problem is that she has been allowed to do what she pleases. The District Attorneys Office has looked in other directions at any mention of any wrong doing on the part of Rachel Palmer, and any illegal actions (impersonating a public servant) by her husband. And now, she may have committed a crime? She may? Shouldn't she be in the business of knowing what is and isn't a crime? Are her political connections going to save her? They shouldn't. There are a bunch of other prosecutors at 1201 Franklin that would have been escorted out the door by investigators at the mere suggestion that makes Pat Lykos look bad. Remember Rifi Newaz and Mark Donnelly? Nothing illegal in what they did. Difference there is that no one asked Rifi and Mark what happened. No one from the sixth floor anyway. I can remember certain prosecutors fired for lying. Lying to Division chiefs, or lying to chief's, or even lying to a grand jury. Those prosecutors were escorted out by investigators. Rachel Palmer apparently has buttered her bread on the right side. So, Rachel Palmer, the fix is in? It appears that the fix was in with all the prosecutors alluded to, or named above in that they weren't politically connected to Pat Lykos enough to stay, or want to stay. Sad. Instead, it appears that while Harris County has Pat Lykos as their elected DA, they will have a DA who chooses to ignore ethical issues with prosecutors she holds in high favor and chooses to ignore the laws if it suits some feel good policy that makes her look good on tv. Please wake up Harris County voters. Rachel Palmer will always follow Lykos. Let them go mess up another government agency.

The DA's office sought and got felony indictments on the protesters who used PVC pipes to make their arrest more difficult. This was after a judge found no probable cause. The DA's office has a supervisor who has taken the fifth and a judge has found the questions proposed by the attorneys pro tem would incriminate her. The DA's office has kept employed, their attorney who took the fifth. Its a wonderful world. This is a wonderful DA.

(I am an ADA here in Harris County, and I am pissed. I started writing a comment, grew even angrier and more verbose, and decided to break it up into three separate comments. )

Part 1:I don’t know if people outside the CJC have any idea of the number of truly heinous crimes and tragedies we handle every day in the courthouse (I don’t think that Lykos herself understands, really). Just take a look at the first 10 headlines on any given day, and most of them are cases that the DA’s office is handling or will be handling—children beaten to death, children molested by a trusted coach, people abducted, etc. These cases continue on unabated in spite all the foolishness of the administration.

Those of us who prosecute know that the families of these victims trust us with what little faith they have left to muster. We know how difficult and sometimes depressing (although rewarding) it is to meet with those families. Occasionally, those families have thought about seeking their own vengeance. We persuade them to just wait, trust the system, and let the process play out while we seek justice. They need to believe that we are sincere, trustworthy, and that we will spend the needed time and resources on their case. It is so difficult to gain the trust of those families, and so easy to lose it.

And now…I know some of those families are watching the coverage of the mockery that this administration is making of this DA’s office and the justice system. It pains me to think of them watching us defend ourselves at all costs, including the cost of their own loved one. What clowns they must think we are—publicly so focused on delaying justice, when their own loved one’s killer waits seemingly forever for trial. I think of their sleepless nights after seeing this. How can they possibly believe that we are actively seeking justice for them, when we are so busy defending ourselves? How they possibly trust a system that top DAs are now publicly claiming is broken?

Palmer doesn’t understand why we are all furious with her. It’s because those of us who have stayed despite everything do so to try to minimize the damage this administration has done to justice. We fight every day to make a difference in the cases that we handle, to prosecute thoughtfully and wisely. It’s like standing here plugging our fingers in a crumbling dike. This choice comes at a real cost to most of us. I hoped that maybe even though I was working overtime and missing my child, maybe I could make the world a little bit more just, maybe help someone else’s child that doesn’t have all the advantages that mine has. Because of all that, I AM PISSED IN A VERY PERSONAL WAY AT THE ADMINISTRATION AND PALMER. We sacrificed all this for you to throw it all away?!? For a piddly county election seat?!? THESE ARE PEOPLE’S LIVES. Neither Lykos nor Palmer care one whit for the victims of Harris County, nor for the defendants, nor for justice.

Shame on all of you. Rachel. Lykos. And Jim and Roger. Each of you would rather bring down every last one of us, let every defendant walk, and let every victim twist in the wind rather than ANY of you taking a righteous stand.

Even Chuck, in his pain-pill induced state, was willing to step down rather than take the entire office and justice system down with him. Congratulations, you have less integrity than Chuck Rosenthal in his darkest days.

I don’t think Rachel or the admin gets it. So here it is:Why Rachel Palmer Should No Longer Be an ADA—A Primer

I. Taking the 5th Amendment logically means one of two things, either of which is incompatible with being an ADA:a. You are taking the 5th to avoid incriminating yourself. Which means that you believe that if you answer those questions truthfully, you will incriminate yourself. Which means you have done something incriminating, i.e. you have committed a crime. You should not be an ADA.b. You don’t believe that you have committed a crime, but are trying to cover up for someone else. But by claiming the 5th, you are asserting that you may incriminate yourself. Since this is a lie in this scenario, and a very serious one at that, you should not be an ADA.

II. Rachel Palmer hid and covered up knowledge of wrongdoing and exculpatory evidence from defense counsel, and even from other prosecutors, denying justice. Rachel knew months before this investigation that she was concealing wrongdoing. When prosecutors asked her for any email regarding the BAT vans that might be Brady material, Rachel would refuse to allow EVEN FELLOW PROSECUTORS to see the relevant emails. Time and time again, she took steps to show that she was trying to cover up who knew what, when.

Further Evidence that Lykos and Leitner don’t care about justice:There has been some recent discussion on this blog about grand jury terms possibly ending unexpectedly on December 31st. You would think that we would be given some guidance about this at the DA’s office. Instead, Leitner became very angry and agitated when asked about it at a meeting. He stated that he didn’t want to discuss it. He just doesn’t get it. It’s not about the two investigations focusing on this office, it’s about the literally 1000s of cases currently open that we are handling. Some division chiefs told their people earlier this week that there may be no grand juries up and running until January 30th. Yikes.

For those outside the CJC, this is why this is a big deal: To proceed with felony charges, a grand jury must indict a case. If the defendant is in jail, the case must be indicted within 90 days, or the defendant is entitled to a bond he can make (basically, if the office fails to get an indictment within 90 days, the defendant will get out on bail). This includes murders, aggravated robberies, rape, etc. In Harris County, we handle such a huge case volume that grand juries typically meet every day, and prosecutors plan accordingly. To suddenly tell us that we might be 40, 45 days without a grand jury is alarming because some very dangerous defendants could be released from jail. You think that the administration would also be concerned and would give us some guidance on this. Why don’t we see a memo from general counsel’s office about what we can expect? Why are we left floundering?

Angry ADA I read your post and you really speak the truth. That came from your heart and I get what a miserable situation this is. What Palmer has done is make a mockery of the office. A person like her tarnishes the good name of the men and women at that office who are fighting the good fight... Murrary I have never had the pleasure of meeting you but I praise you.. a forum like this where you can get the real story out is amazing.. But please for all of us news watchers get that Palmer woman to wipe that smirk off her face ...she is not cute.. not funny ...and she seem to think this is a joke.

Great article Murray. Anonymous ADA, great comment, and thank you for your honesty and frankness. This situation puts a blemish on the Harris County justice system in such a way that could reverberate for years to come. Being known as the toughest county in America is one thing, but possibly being known as a corrupt county is another altogether. For all of the times I have approached a prosecutor with the proposition that there was mud in the water on some case or another, and was rebuffed or met with some funny comment to the tune of," All officers are liars,huh?" or "All scenes are tampered with,huh?" or "This one didn't give consent either did he?" The Harris County D.A.'s Office's actions have given credibility, most of it probably undue, to statements that they could once rebuff with a straight face or a slight chuckle. If the fix is in on a DWI, why can't it be in on a big drug bust or a murder with not enough evidence to convict? Why risk so much over something such as a DWI? Get them next time. They will drink and drive again. Honestly, I kind of liked it better when the wizard was behind the curtain.

Thank you Angry ADA Seeking Justice for caring... Your passion is admirable. But a defendant with a case unindicted within 90 days is entitled to an examining trial, not release. At an examining trial, the state would be required to show probable cause....if no probable cause, then release. We never see examining trials in Harris County because lawyers know that if you ask for one, your client will just end up being indicted. Also, many judges are sticklers for making sure prosecutors present cases to grand juries within 90 days.

Where has Lykos been during this entire ordeal? Isn't she the elected DA? Great leadership, Pat. Thanks Murray. Great job. Some of the comments of the past posts tell it "like it is." The best ones are from the ADA's who work there and speak the truth and from their heart. Come election time, those who do know the truth need to get their friends and families to the polls and un-elect this egotistical nut out of office.

Thank you ADA's who continue to do your jobs under this administration. It must be hard to concentrate with this circus going on around you.

I actually feel kind of sorry for Palmer at this point (though as a former prosecutor who has been on the receiving end of Palmer's venom I shouldn't), as she has absolutely screwed herself by taking the 5th. Here's how I see it:

1) Parmer is done at the DA's office, as she has destroyed any credibility she may have had prior to taking the 5th. Palmer was never particularly liked or respected around the office, and now she will be forever known as the DA who took the 5th. Going forward she will have zero credibility with all prosecutors, defense attorneys, judges, and any member of the public (i.e. potential jurors) she comes into contact with. Where can the administration possibly put her now? Trial bureau? Forget it! She wasn't wanted there before this fiasco. Public/media relations? We've seen how "effective" Palmer is in front of the camera, so no way (but then again, considering that the current media people never actually do anything, I guess they could hide Palmer there). Where can she go?

2) Any political aspirations Palmer had have been destroyed. Can you imagine the attacks that could be leveled against Palmer at this point?! It would be child's play for a political opponent to attack her. She’s done when it comes to politics.

Bottom line, this whole pathetic episode should serve as a cautionary tale to everyone. Just do the right thing – regardless of the consequences – and hopefully you will not find yourself in Palmer’s sad situation. And Palmer, a piece of advice. When you’re in a hole, please just stop digging. You need to fess up, shoot straight with the grand jury, and let them seek the justice you are clearly attempting to avoid.

Anon 6:26: maybe Lykos will put her in charge of training and interns indoctrinate them on the "Lykos Way".

Seriously, I'm worried about her Junior League and Charity work. I'm just hoping that the Junior League won't keep a district attorney on their board who has admitted that she may have committed a crime. Let's keep her away from our Houston youth!

@6:35 - I agree; Don Hooper is NOT even a local GOP LITTLEwig. He is a cancerous thorn in the local GOP that needs to scurry quietly away...and if Lisa Falkenberg or Ted Oberg need a story - they could focus on his role in manipulating people and politics via intimidation, lies and fraud...

Dear angry ADA,I know thru experience what you are going through. Stay strong, keep giving the citizens of Harris County your 100%. There are many of us on the outside doing everything in our power to help. You and all employees’ are in my heart and in my prayers. Thank you so very much for the job you do.

Art. 17.151. RELEASE BECAUSE OF DELAY.Sec. 1. A defendant who is detained in jail pending trial of an accusation against him must be released either on personal bond or by reducing the amount of bail required, if the state is not ready for trial of the criminal action for which he is being detained within:(1) 90 days from the commencement of his detention if he is accused of a felony;...

"Even Chuck, in his pain-pill induced state, was willing to step down rather than take the entire office and justice system down with him. Congratulations, you have less integrity than Chuck Rosenthal in his darkest days.

Signed, Angry ADA Seeking Justice"

1. Chuck is solely responsible for Patsy Lykos being the elected DA of Harris County2. Chuck only stepped down when he knew the Texas Attorney General was about to intervene and crush him like a roach3. Chuck and Patsy have the same level of arrogant selfishness that is void of integrity.

Great post. I really wanted more information after reading Mark Bennett's blog that somebody kept posting a link to on every Chronicle story covering this subject. ADA's comments were also appreciated and rather illuminating.

I certainly wish Article 17.151 had as much power as you assert. Consider Ex parte Matthews, 327 S.W.3d 884, 887 (Tex. App.-Beaumont 2010, no pet.). In Matthews, the court stated:

We doubt that the Legislature intended to mandate trial courts to release defendants on bail on a personal bond or based solely on the amount they can afford in cases in which the defendant, although unable to pay a significant bail, represents a real threat to his victim or to the community; these are considerations that extend beyond the criteria of article 17.151 § 1 which focuses only upon the defendant's ability to pay.

Courts can still set high bonds if a defendant isn't indicted within 90 days. This all follows a hearing where the trial court examines whether or not the state was ready for trial, probable cause and the danger a defendant may pose. But some of the posters here are right, we defense lawyers need to do our jobs.

Eric 11:27 you are totally incorrect. If the State is not ready for trial in 90 days D entitled to a bond he can make. State not ready if case not indicted. Ask your chief, Mark H. He will set you straight.

Eric is sort of correct. In order to deny a personal bond to an indigent defendant, the Court would have to find that the defendant "represents a real threat to his victim or to the community," (quoting ex Parte Matthews) or make a similar finding regarding community or victim safety. Making such a finding won't be possible in all cases. In those cases, 17.151 will entitle an indigent defendant to a personal bond.

This is all, of course, assuming that Harris County courts want to follow Matthews, which is not binding authority.

About Me

I practice criminal law and criminal law only. I've been involved in the criminal justice system since I was in college, and I've been practicing in Houston for over 18 years.
Most people never have to come down to the Harris County Criminal Justice Center unless they have jury duty. This blog is meant to give the Outsider an inside view.
These are just my opinions. The opinions of the Commenters are also just their opinions and I don't endorse them. But (within reason), I want everybody to be able to have a forum to say what they want to say.